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I 



GENEVA AWARD. 

; — ; "-fir 

By E. W.^METCALF, 

"EXCULPATED CRUISERS.'' 

Mr. Citairman and Gentlemen of the Committee : 

I am thankful for your courtesy which allows me to pre- 
sent, for your consideration, Ikct.s to establish the following 
propositions: ^ 

9. The property of myself and others was destroyed l,v 
an ocean wa.-fare which would have been impossible bu't 
tor the unwarrantable conduct of England. 

S. Our Government gave definite notice that England 
would be held responsible for our speciHc loss, and declared 
that the lowest form of satisfaction it could accept would be 
full mdemnity for those of its citizens who had suffered loss 
by such destructions. 

3. Through the Treaty of Washington our Government 
obtamed an apology from England, a sum of money sufK- 
cient for the indenmities which it had dematided for its 
citizens, and also the establishment and construction of 
international law in accord with the fixed policy and high- 
est interests of this nation. * 

4. Thus our Government, after having fully indorsed our 
claims and declared them just as against England, settled 
them with England, receiving for them a valuable and full 
consideration. 

December 29, 1864, the Delphfm, built bv me in Bangor 
Mame, was burned by the Shemmloah, a vessel built in Eng- 
land, armed and manned by Englishmen, and partly ofH- 
cered by men rescued by Englishmen from the sinking 
Alabama. ^ 




S5M5f 



The Shemmdodh sailed from England under an English 
register, and displayed the English flag while she captured 
our ship, but showed tiie Confederate flag while she was 
burning. 

Like the Georgia, though sailing under a Confederate 
com mission, she was never in a Confederate port. She 
was never in other than an English port. 

Like her, after her career of destruction, she returned to 
an English port to discharge her crew, wdiose half-pay or- 
ders during their cruise had been paid in England by an 
English Arm. 

(She was given l)y her captain to the English authorities, 
and by them to the United States, She was sold, as was 
the Georgia, and her value is in the Treasury, Thus I was 
deprived of my remedy in rem against her, which I was 
preparing to seek from the English courts.) 

All was done with the sympathy, if not tlie connivance, 
of the English Government, whose precipitate and prema- 
ture prochmiation of belligerent rights had alone made it 
possible for these tilings to be done, and whose conduct 
was the sole source of all Confederate warfare on the 
ocean. 

Several of the crew of my ship, being Englishmen, en- 
listed on the Shenandoah. The others, with the captain and 
his wife, were left in Australia. 

Neither the captain nor myself had any war insurance. 

These facts justified my own belief, and compelled my 
countrymen to believe that England ought to pay for my 
loss, and for all loss like mine. 

When I learned the facts, I wrote to the Secretary of 
State, and received the following reply: 

Department of State, 

Washington, '20ih Muj, 1865. 
E. W. .Metcalf, Esq., Bangor, Me. 

Sir: In I'eply to your letter of the 17th instant, request- 
ing iui'orniation in regui'd io the manner of flling your 



\ 



claim ao;ainst tlie J3ntish Governnieiit, for the loss of the 
ship Delphuie. which vessel it is alleged was destroyed hy 
the cruiser " Shenaiulonh,'''' I have to state that the form to 
be observed in such cases is by a memorial, signed under 
oath, addressed to the Secretary of State, and accompanied 
by such proofs and documentary evidence as may be iu 
your power to obtain. 

I am, sir, your obedient servant, 

W. Hunter, 

Adiufi Secretary/. 

I sent to the Department of State the following, with 
enclosures named : 

Bangor, Jam: 7, 1865. 
To Hon. Wm. H. Seward, Secretary of State : 

With this I have the honor to hand you the memorial of 
the owners of the ship Delphine, destroj^ed by the Sea King 
or Shenandoah, also captain's protest, a copy of her register 
and certificate of ownership — hoping that all proper meas- 
ures maybe taken to insure reimbursement by the Govern- 
ment of Great Britain, 

If these papers are in any way defective, or if other evi- 
dence is required, will you be so kind as to inform me, 
that the deticiency may be remedied ? 

In answer I received : 

Department of State, 

Washington, lO^A Jane, 1865. 
E. AV. Metcalf, Esq.: 

I have received yours of the 9th instant, presenting a 
claim to compensation in behalf of the owners of the sliip 
Delphine, which was destroyed at sea by the Sea King. 

In reply I have to inform you that the matter will i-e- 
ceive at the earliest practicable moment the attention of this 
Department. 

W. Hunter, 

Acting Secretary. 

I also afterwards received a printed list of rules, with a 
request that I would without delay forward to the Depart- 
ment of State, in accord with the rules, a statement of our 



loss, whicli I did, and received in I'eply another acknowl- 
edgment and promise of attention. 

Still later, December 14, 18G5, I received another letter 
from Secretary Seward, asking to what extent the owners 
of the Delphhie were insured, if at all ; to which I replied, 
giving the information asked, the receipt of which w-as ac- 
knowledged bv the Secretary. 

I had written to the United States Minister at London, 
under date of May 16, 1805, stating the circnmstances of 
the destruction of the Delpldnc hy the ShcnKiulonh, and that 

-'The owners of the Delphine believe that the English 
Govei'nment may be justly held responsiljle, and that jus- 
tice to themselves and the honor of their nation demand 
that due reparation be requii'cd. I take the lit)erty to request 
information of you in relation to the Sen Kukj — the circum- 
stances of her leaving England — whetlicr any remonstran- 
ces or protests were made to the English Government, or 
its attention called to the subject in any way, and whether 
our own Government has been put in possession of the 
facts and evidence in the case, so as to render it unneces- 
sary for the ovk'ners of the Delphine to procure such evidence 
to present with our claim against England to our Govern- 
ment," 

To this he replied : 

Legation of the United States, 

London, June 14, 1865. 
E. VV. Metcalf, Esq., JS//??//or, Mp. 

Dear Sir: I have to acknowledge the receptioti of your 
letter of the IGtli of May, n)aking inquiries as to the extent 
of the evidence in this legation respecting the origin and 
character of the steamer Sea King, now called the Slienan- 
doah. 

The only answer which I can give is to refer you to the 
2d volume of Papers Relating to Foreign Atfaii's, accom- 
panying the l^'csident's annual message in 1864, page 367. 
You will tind there a letter from Mr. Seward to me, ex- 
pressing the views of the Government in regard to the Sea 
King. Whatever further information you may desire will 
be obtained by application to the Department of State. It 



could not come from this legation without some departure 
from the ordinary regulations of the service, whicli forhid 
the disclosure of information. The propriety of this rule 
Avill, on a moment's reflection, occur to you. 

I should suppose all tliat the owners of the Ddpfiine 
would be required to do is to establish the fact of the cap- 
ture and destruction by the Shenandoah, by the requisite 
papers, and give the customary valuation of property, which 
papers will of course go to the Department of State in the 
first place, and tlien in all probability to me, with instruc- 
tions. 

I am. your ob't servant, C. F. Adams. 

I subsequently learned that Mr. Adams had become so 
much discouraged by the conduct of England in regard to 
other cruisers that, to use his own words, he was " not much 
disposed to waste any more discussion," and that, although 
the Shenandoah had been the subject of several letters be- 
tween American ofticials, he did not give notice or protest 
to the English Government until after the Shenandoah had 
sailed. 

This lack of notice probably accounts for the Shenandoah 
not coming within the three rules as construed by the tri- 
bunal until after she left Melbourne, for the counsel of 
Great Britain urged before the Geneva Tribunal that "the 
complaints of the United States might not have been nec- 
essary if Mr, Adams had communicated, in good time, such 
information as he possessed." 

At the page and place indicated by Mr. Adams, I found 
the letter to him from which I quote: 

Department of State, 

Washington, Bee. 3, 1864. 
Sir: Information has reached this Department * * 
that the notoi'ious commander of the Alabama has again 
obtained command of a British-built vessel, * * and is 
now at large upon the high seas for the purpose of commit- 
ting depredations upon the commerce of the United States. 
I will thank you to bring the case under the attention of 
Earl Russell, protesting against any such arrangement as 



that above indicated, and informing his Lordship that if it 
is correctly stated this Gorernine.nt considers thU Her 31'ijestij^s 
Gocenimeni ma// he heUljustl// responsible for aui/ losses accru- 
ing to citizens of the United States through the depredations of 
the Sea King. 

I am, sir, your obedient servant, 

Wm. H. Seward. 

Farther on I found another letter from Mr. Seward to 
Mr. Adams: 

Department of State, Jan.. 27, 1865. 
Sir : Referring to my dispatch of 3d ultimo, I now trans- 
mit a copy of a dispatch from James Monroe, Esq., the 
consul of the United States at Rio Janeiro, containing a 
statement of the destruction of four United States mer- 
chants' vessels, with their cargoes. * * Under these 
circumstances I have to request you to inform Her Majesty's 
Government that the United States will claim redress for the 
injuries and losses inflicted on her citizens by the depredations 
of the Sea King or Shenandoah. 

I am, sir, your obedient servant, 

Wm. H. Seward. 

Mr. Adams did inform Her Majesty's Government, and 
again, April 7, 18G5, in a formal note, addressed to Lord 
Russell, he said : 

"This same vessel has been, since the date of Mr. Mon- 
roe's letter, heard of at Melboirne, from which place fur- 
ther details of similar outrages have been received." * * 

And announced to his Lordship this fact : 

"My Gorernment cannot avoid, entdling upon tlte Gocernmeni 
of Great Britain the responsibilitg for this damage." 

Please note that all this refers to acts of the Shoiandoah 
before she reached Melbourne, for which no indemnity has 
been given to citizens of the United States, and that our 
Government gave this definite notice at the time that Eng- 
land would be held responsible for this loss. 

On September 14, 1872, the Geneva Tribunal decreed 
that England should pay a sum of money to the United 



States, which partial adjudication and careful computation 
show to be fully equal to the value of all the property de- 
stroyed by all the Confederate cruisers, and interest. It 
was paid September 9, 1873. ^ 

vX 

This money was received under the Treaty of Washing- 
ton through the efibrts of the Government of the United 
States. Those efforts were made in fulfillment of its most 
sacred obligation to use due diligence — 

First. To protect the nation's honor. 

Second. To secure the nation's greatest good. 

Third. To protect each of its citizens from wrongful 
injury. 

Under that Treaty the nation's honor was protected by 
the apology England made in the expression of regret. 

The nation's greatest good was secured by such establish- 
ment of international law as is just and necessary for this 
nation's welfare in the future. 

Due diligence will have been used by our government 
to protect its citizens when it shall have used the money 
which it has received, without tax upon its rerenues or people, 
for England's fault, to indemnify those of its people who 
suffered loss not common to all through that fault. 

The Queen's proclamation, granting belligerent rights, 
was issued on the first intelligence of the firing on Fort 
Sumter. 

This proclamation was, and was repeatedly and most 
emphatically, declared by our Government to be "the 
cause, and the only cause, in which this evil had its 
origin." 

Had that recognition of belligerent rights been withheld 
no Confederate vessel of war would have been on the 
ocean, for then the Englishmen engaged in this Confede- 



8 

rate muritine warfare would, by the laws of Eno;lancl and 
the ^^■orld, have been pirates.* 

Daring all the war, and for _years thereafter, the demand 
of our Government upon England, for indemnity for all 
the loss eaused by all the cruisers, was nnequivocal, its 
views pronounced. 

Its formal note to the British Government of May 20, 
1865, only reiterated that which it had, over and over 
again, expressed in every diplomatic form before, viz.: 

" That the act of recognition was precipitate and unpre- 
cedented." 

" That it had the etfect of creating these parties bellig- 
erents after tf.e recognition, instead of merely- acknowl- 
edging an existing fact." * * * 

" Tliat during the whole course of the struggle in 
America, of nearly four yeai's in duration, there has been 
no appearance of the insurgents as a belligerent on the 
ocean, excepting in the shape of British vessels, constructed, 

equipped, supplied, manned, and armed in British ports." 

* * * 

" That the injuries thus received * * are of so grave 
a natui'e as in )'eason and justice to constitute a valid claim 
for repai'ation and indemnification." 

* * * "That the nation that recognized a power as 
a belligerent before it had built a vessel, and become itself 
the sole source of all the belligerent character it has ever 
possessed on the ocean, must be regarded as responsible 
for all the damage that has ensued from that cause to the 
commerce of a power with which it was under the most 
sacred of obligations to preserve amity and peace." 

*" They would have been, in the estimation of English 
laws, as well as the law of nations, piratical vessels. T'hey 
never, therefore, would have been on the ocean, and the 
vessels and cargoes belonging to American citizens de- 
stroyed i\v them would have been in safety. Upon this* 
gi'ound, then, inde[)endent of the question of proper dili- 
gence, the obligation of Great Britain to meet the losses 
seems to me to be most apparent." {Rererdi/ Johnson to 
Secretary Seward, Correspondence Concerning Claims v. Great 
Britain, vol 2, /). 764.) 



9 

The Secretary of State, Mr. Seward, officially wrote, 
June 13, 1868 : 

"I have been singalarly unfortunate in my correspond- 
ence if I liave not giv^en it clearly to be understood that a 
violation of neutrality by the Queen's proclamation and 
kindred proceedings of the British Government is regarded 
as a national wrong and injury to the United States, and 
that the lowest form of satisfaction for that national injury 
that the United States could accept would be found in an 
indemnity, without reservation or compromise, by the 
Britisli Government to those citizens of the United States 
who had suffered inrlividual injury and damage by the 
vessels of war built, equipped, manned, fitted out, or enter- 
tained and protected in the British ports and harbors." 

" There is not one member of this Government, and, so 
far as I know, not one citizen of the United States who 
expects that this country will waive, in any case, the de- 
mands that we have heretofore made upon the British 
Governtnent." {Cor. concerninq Claims vs. Great Britain, 
vol. 3, p. 688.) 

These demands were made when the nation was wounded 
and weak, sick nigh unto death through internecine war 
"While England hoped and believed we should die, she 
treated our demand w-ith scorn ; but when the war was 
ended, and England saw that we were alive, and to live, 
she consented, by the Clarendon-Johnson Convention, to 
go under a full bill of indictment, before a tribunal which 
must have adjudged her guilty as charged, and amenable 
to the demands. 

Of this Convention, Reverdj' Johnson, its author, said, 
in his report to the Secretary of State : 

" We have obtained by the Convention in question all that 

we have evei' asked. That their decision will be in favor 

of the United States I do not doubt, I am equally satisfied 

that if the Convention goes into operation, every dollar 

due on what are known as the Alabama claims will be 

recovered." 
o 



10 

And he gives bis reasons for this conviction. (See foot- 
note 1.) 

Yet this Chirendon-Jolinson Convention was rejected by 
the Senate. Why ? Was it because the nation when weak 
and struggling for Hfe had demanded too much ? Xot at 
all. It was because, conscious of returning health and 
strength, we had determined to demand more than mere 



(1.) 

"I have no doubt the Alabama Claims will be realized 
under this Convention. This (the English) Government 
has yielded in regard to these claims two grounds hereto- 
fore positively assumed by them — First, * * * they 
would not refer to arbitration at all our demand in regard 
to them; and secoiuJ, * * * they would not so refer 
the question of the rights of this Government to liave 
recognized the late Confederates as belligerents. Both 
questions by the Convention just signed will be before the 
Commissioners. — (Correspondence, &c., vol. 3, p. 751.) 

" You have heretolbre refused to enter into an agree- 
ment to arbitrate the Alabama Claims, unless this Gov- 
ernmejit would agree that the question of its rights to ac- 
knowledge as belligerents the late so-called Southern Cou- 
fe<lerancy be also included within the arbitration. You 
will see * * * ^i,^f ^j,j^(^ question, as well as every 
other wliich the United States may think is involved in 
such claims, is to be before the Commissioners." — Sdme, p. 
700. 

"Neither of the Governments represented at the Con- 
ference, if selected as an arbitrator under our Convention 
of the 14th iiistant, could fail to award in favor of the 
United States, and, indeed, as England was herself rei)re- 
sented, and no doubt concurred with the Conferance, she 
may be considered as agreeing to the justice of our de- 
mand." — Same, p. 758. 

" That their decision will be in favor of the United 
States I do not doubt. The reasons for tliis conviction I 
will briefly state: 

'* First. The recognition of belligerent rights. * * * 
The act is one which bears materially upon the question 
whether this Government is not bound to indenmifv for 



11 

indemnity for loss of private citizens (2) — had determined 
to require an apology (3) from England, and a national 
settlement, securing national advantage. 

The policy of strict neutralitj' inaugurated hy Washing- 
ton during the French revolution, and so earnestly advo- 
cated in his farewell address, was, as stated by Marshall : 

" The commencement of that system, to which the 

losses occasioned by the Alabama and the other vessels, for 
then that vessel and the others could not have been ci)n- 
structed or received in British ports, as they would have 
been in the estimation of English law, as well as the law 
of nations, piratical vessels. They never, therefore, would 
have been on tlie ocean, and the vessels and cargoes be- 
longing to American citizens destroyed by them wonld 
have been in safety. Upon thisground, then, independent 
of the question of proper diligence, the obligation of Great 
Britain to meet the losses seems to me to be most appar- 
ent." — Same, p. 7ti4. 

" I am equall}- satisfied that if the Convention goes into 
operation, every dollar due on what are known as the 
Alabama claims will be recovered." — Message ami Docu- 
ments, Department of State, part I, 1868 and 1869. 

i'i.) 

" Mr. Sumner, who moved the resolution (rejecting the 
Convention) said that it covered none of the principles for 
which the United States had always contended." (Papers 
Relating to Treaty of Wash., vol. 2, p. 450.) 

"The Convention was objected to because it embraced 
only the claims of individuals, and had no reference to those 
of the two Governments on each other." (Same, p. 462.) 

(3.) 

The apology or expression of regret by England was a 
'condition precedent' to the negotiations for the Treaty 
of Washington. 

" We had now progressed so far as to render the ap- 
pointment of the Joint Commission a strong probability, 
and I desired official assurance that the British Gocernment 



12 

American Goveri)ment afterwards inflexibly adhered, and 
to which niuoh of the national prosperity is to be ascribed." 
(Marshall's Washington, vol. 2, p. 259.) 

So earnest was onr Goverinrient in maintaining this pol- 
icy, that it engaged in jy^^o- with England in 1812, to defend 
our rights of neutrality. 

It was consistently adhered to in our settlement with 
England under the Treaty of Wasliingtou. 

The Trent afliiir had been made by our Government to 
establish beyond cavil a principle which years of war with 
England had failed to establish. The right of search claim- 
ed by England, and resisted by us, was left untouched hy 
the Treaty of Ghent, but was settled just as we had wished 
and fought for by the case of the Trent. 

So the Clarendon-Johnson Convention was rejected in 
order that, in settling the Alabama Claims, this nation 
might secure the establishment of international law, audits 
construction by a competent tribunal in accord with the 
lixed policy of the United States. 

The 1^'esident said to Congress : 

''■ I regard the action of the Senate in rejecting the treaty 
to liave been wisely taken. * * j hope the time may 
soon arrive when the two Governments can approach the 
solution of this momentous question with an ajipreciation 
of what is due to the rights, dignity, and honor of each, and 
the determination not only to remove the causes of com- 
phiint in the past, but to lay the foundation of a broad 



loovld make the exp'ession of regret, without which we should 
have proceeded no further." (Fish to Schenck, Papers, 
&c., vol. 2, p. 587.) 

"I well remember that from the beginning you required 
official assurance that the British Govermiient would make 
expression of regret for what had taken place in regard to 
the Alai)ama and other cruisers, declining to pass the pre- 
iminary notes with Sir Edward Thornton until this among 
other things was distinctly understood." (Schenck to Fish, 
p. 588.) 



13 

principle of public law which will prevent future ditler- 
ences, and tend to firm and continued friendship." 

To avoid the injustice of holding in abeyance the just 
claims of citizens, while waiting the nation's convenience, 
the President further said to Congress : 

" I therefore recommend to Congress to authorize the 
appointment of a commission to take proof of the amount 
and the ownersliip of these sevei'al claims on notice to the 
representative of Her Majesty at Washington, and that 
authority be given for the settlement of these claims by the 
United States, so tliat the Government shall have the own- 
ership of the private claims, as well as the responsible con- 
trol of all the demands against Great Britain." (Presi- 
dent's Message, Dec. 5, 1870.) 

What were the private claims to be thus settled and 
owned ? Obviously those for which the United States had 
declared England responsible, and demanded indemnity. 
The demand was for the loss by all the Confederate cruisers, 
and that would have been the settlement. 

This recommendation of the President was so quickly 
followed by the Treaty of Washington that Congress, with- 
out action, awaited the result of that treaty. 

But in all tluit related to the Treaty these private claims 
were treated as if they hid been paid by this nation and 
were owned by it. 

Other private claims of citizens of either nation were by 
Article 12 of the Treaty referred to a mixed conmiission ; 
but the Alabama Claims — " all the claims growing out of 
the acts of the several vessels " — were, by Article 7, referred 
to a great international tribunal, which the Treaty created. 

With this definite notice to the Tribunal: 

"These claims are all preferred by the United States as 
as a nation against Great Britain as a nation, and are to 
be so com[)uted and paid, whether awarded as a sum in 
gross under the seventh article of the Treaty, or awarded 



14 

for assessments of amounts under the tenth article." (Pa- 
pers, &c., vol. 3, p. 16.) 

The Treaty, having lirst provided and recorded an ex- 
pression of regret in the nature of an apology from Eng- 
land, created three new international rules, detining what a 
neutral goverimient is bound to do, by which botii Gov- 
ernments agreed to be bound in the future, and rgiywiVecZ this 
international tribunal to do one thing, and only one, as 
regards the several Confederate cruisers, viz. : 

"Determine as to each vessel separately whether Great 
Britain has by any act or omission failed to fulfill any of 
the duties set forth in the said three rules, or recognized 
by the principles of international law not inconsistent with 
such rules, and certify such fact as to each of the said 
vessels." 

It allowed the Tribunal to do another thing, viz. : 

"In case the Tribunal find that Great Britain has failed 
to fulfill any duty or duties as aforesaid, it ma}^ if it think 
proper, proceed to award a sum in gross to be paid by 
Great Britain to the United States /or all the claims referred 
to it:' 

The Tribunal decided that England had failed to fulfill 
duties set forth in the three rules as regards the Alabama, 
Florida, and their tenders, and the Shenandoah after she 
left Melbourne, but had not so failed as regards either of 
the other cruisers, or as regards the Shenandoah before she 
reached Melbourne. And then it thought proper to, and 
did, award a gross sum — 

"As the indemnity to be paid by Great Britain to the 
United States for the satisfaction of all the claims referred 
to the consideration of the Tribunal by the Treaty," and 
declared "that all the claims referred to m the Treaty, as 
subnutted to the Tribunal, are herein/ fully, perfectly, and 
finally settled," "whether the same may or may not have 
been presented to the notice of, or made, preferred, or laid 
before the Tribunal." 



15 

On iiccount of this decision the cruisers have been de- 
scribed as inculpated and exculpated. 

More than five-sixths of the damage was caused by the 
inculpated cruisers. 

There has been much discussion as to what eti'ect, if any, 
these decisions have upon the obhgations of this Govern- 
ment to its citizens, as to the distribution of the sum 
awarded. 

This discussion has resulted in the adoption by both 
House and Senate of the theory of distribution, which is 
embodied in the law of 1874, that this nation, as a nation, 
was the plaintiff" in the case, not an attorne}'. 

That the Government, being under obligation to use due 
diligence to protect its citizens from wrongful injury, re- 
covered the gross sum in its own name as indemnity for 
injuries suifered by itself in the persons of its citizens, with 
which sum it is its duty to indemnify those of its citizens 
who have suffered loss. 

But that no rights of individuals were created by the 
award of the Tribunal to which the law of subrogation could 
apply. 

The justice of this conclusion will be apparent if we take 
into account the circumstances and obligations under which 
the Treaty of Washington was made and the Geneva award 
obtained. 

The great war was over. We were and were to he one 
great nation. 

The duty of this great nation was to utilize the events, 
decisions, and lessons of the war, to give itself more unity, 
more influence, more power for good to all its people and 
in the family of nations. Of all its duties and responsibil- 
ities, none were more important or delicate than those 
arising from our foreign relations. 

We had declared to our own citizens, to England, and 
to the world that the loivest form of satisfaction that the 
United States could accept would be found in an indemnity 



1(5 

by the British Government to those citizens of the United 
States wlio had siitiered individual injury and damage by 
the Confederate vessels of war. 

The nation's honor and its obhgation both demanded 
that such indemnity or its equivalent should be insisted on 
and obtained. 

But the nation's great duty was, while dealing justly 
with each citizen, to secure the greatest })ossible good for 
<(U its citizc.us for all the future. 

That good required that the rights and duties of neutral 
nations in time of war should be well defined, for those in 
the future were to be our rights and duties — required that 
the riglits of neutrals should be as well secured, their du- 
ties as light, and their pi-ivileges as great as cuuld be con- 
sistent with justice and the welfare of the world; for in 
the future ive were to be neutral. 

England's conduct as a neutral was to be referred to the 
great court at Geneva. It must be submitted, under rules 
so broad and general, that no belligerent, in future cases 
against a neutral, could set up the plea that this adjudica- 
tion was not broad enough to cover the case which might 
then be in issue. 

It was the duty of our Government to so manage this 
case as to secure the results most valuable to the United 
States. 

That this duty was kept constantly in view by the De- 
partment of State and our Counsel at Geneva, is shown by 
what the English Minister wrote to Lord Granville : 

" Mr. Fish said that the United States were quite as 
much interested as Great Britain in obtaining from the 
Tribunal a decision adverse to those claims. * * Mr. 
Fish told me that Mr. Adams left New York for England 
on the 24th inst., and that on his arrival there he would 
convince your Lordship, though unofficially, that he (Mr. 
Adams) was entirely opposed to the princijile of claims 
for consequential damages." (Papers, &c., vol. 2, p. 482.) 



17 

And by what our Counsel said to the Tribunal : 

" Considerations of large import in the sphere of inter- 
national relations, of which the Government of the United 
States is the riglitfnl judge, forbid their Counsel to press 
for extreme damages on account of the national injury 
thus suffered by the nation itself * * Their object was 
a higher one, and more important to them. * * It is 
not foi- their interest to exaggerate the responsibilities of 
neutrals, but * * to restrain the field of arms and en- 
large that of peace. * * They desired also that the 
great principles of neuti'al obligations and neutral duty 
should issue from this High International Tribunal, repre- 
senting five great constitutional nations, * * We, the 
Counsel of the United States, have acted accordingly 
* * regarding the mere question of the amount of na- 
tional damages to be awarded as secondary to the higher 
consideration of the welfare and the honor of the United 
States." * * (Argument bv Counsel of the United 
States, Papers, &c., vol. 3, pp. 223, 224.) 

"Both the sentiments and the interests of the United 
States, their history and their future, have made and will 
make them the principal advocates and defenders of the 
rights of neutrals before aUfhe ivorhV (Same.) 

And by the fact that President Grant declined to place 
before the Tribunal, as a basis of claims, the proclamation 
granting belligerent rights, which had been so stronglj' 
insisted upon by Secretar}' Seward, as making England 
responsible for all the loss caused by all the Confederate 
cruisers (4). 

Fortunately the interests and wishes of England, as re- 
gards the past, and of the United States, as regards the 
future, coincided. 



(4.) 

"It is also equally clear that the claims for compensa- 
tion, foimded upon the Queen's proclamation, were aban- 
doned by President Grant." (Argument of Am. Counsel 
at Geneva, Papers, &c., vol. 3, p, 196.) 



18 

Both required the narrowest possible construction ol' 
those rules. England, to avoid paN'uient for the past ; the 
United States, to avoid liability for the future. 

When all England (alarmed by the shadowy magnitude 
of the national claims) protested against their being con- 
sidered by theTribunal, the United States ottered to accept, 
as a tinal settlement of them, a supplemental article to the 
Treaty, declaring that claims for remote or indirect losses 
shall not be admitted as the result of failure to observe 
neutral obligations (5), but they persistently declined to 
withdraw or waive them without either the establishment 
of this rule by treaty or rulings on the claims by the Tri- 
bunal (6). 

And when England's lawyers urged before the Tribunal, 
as regards each cruiser, that England had not violated 

See Papers, (fee, vol. 2, p. 526 : 

"You may say that this Government regards the new 
rule contained in the proposed article as the consideration, 
and will accept it as a final settlement of the three classes 
of the indirect claims put forth in our case." (Fish to 
Schenck, same. p. 557.) 

(6.) 

"We think it essential, however, that the question be 
decided whether claims of that nature can in the future be 
admitted against the United States as a neutral." (Schenck 
to Earl Granville, vol. 2, p. 478.) 

"The United States insist that they ai'e entitled to a de- 
cision as to each class of claims, * * but the United 
States have not desii'ed or expected any award of compen- 
sation from Great Britain for the indirect damages. They 
have ever been free to admit in advance that it would 
have been better for their future advantage and interests 
of nations generally that the judgment of the Arbitrators 
should be adverse to that class of claims. * * * It is 
important * * * that every question in regard to such 
clamis ahould be solemnly considered and passed upon so 



19 

either of the new rules, the representatives of our Govern- 
ment gladly acquiesced, and thus secured decisions by this 
great tribunal which in etiect declare that, under these 
rules, in all the future, only American Al'tbtmas, Florixlts, 
or Shenandoahs after Melboui'ne, shall make us liable ; no 
liability in cases like the other cruisei's — no liabilit}' where 
notice before the saihng had not been given, and no lia- 
bility for the indirect results of national fault or neglect. 

Our enormous extent of sea-coast, our small army and 
navy, our very small internal- police, the impossibility of 
preventing our enterpi-ising maritime citizen from titting 
out privateers in times of war, show the great value to 
this nation of these decisions. 

But to gain this great advantage for ever}^ man of all 
the nation, did this nation sacrifice the rights of any man ? 
No! When the Treaty of Washington was being made, 
the British Commissioners originally rejected a proposition 



that they may disappear forever." (Schenck to Earl Gran- 
ville, Papers, &c., vol. 2, p. 517.) 

" Thus you should cleai'ly see the reason why the Presi- 
dent may be able to agree not to press for a money award 
on claims, * * while he refuses to withdraw them." 
(Same, 518.) 

"* * * The United States are sincere in desiring a 
' tabula rasa ' on this Alabama question, and therefore 
they desire a judgment upon them by the Geneva Tribu- 
nal. * * * In the correspondence I have gone as far as 
prudence would allow in intimating that we neither desired 
nor expected any pecuniai-y award, and that we should be 
content with an award that a State is not liable in pecuni- 
ary damages for the indirect results of a failure to observe 
its neutral obligations. It is not the interest of a country 
situate as are the United States * * to have it estab- 
lished that a nation is liable in damages for the indirect, 
remote, or consequential results of a failure to observe its 
neutral duties. This Government expects to be in the 
futui'e, as it has been in the past, a neutral much more of 
the time than a belligerent." (Papers, ^c, vol. 'l, p. 47(>.) 



20 

that the Tribunal at Geneva might award gross damages; 
but it was urged upon them that the FeeUiig of injury on 
the part of citizens of the United States would not be re- 
moved unless a Treaty was so made that our Government 
should be at liberty to give the damages awarded to the 
persons whom they might deem the actual suflerers, with- 
out regard to the decisions of the Arbitrators at Geneva, 
and the J3ritish Commissioners reconsidered tlieir refusal, 
and consented. (See Senator Hoar's Speech, April 13, 
1880.) 

This nation tlien instructed its Counsel at Geneva: 

" Have the sul)ject discussed as one between the two 
Govenmients; * * * secure, if possible, the award of 
a sum iji gross; * * * ti^^ Government wishes to hold 
itself free to decide as to the rights and claims of insui'ers 
upon the termination of ihe case ; if the value of the prop- 
erty captured or destroyed be recovered in the name of the 
Government, the disinbuiion of the amount recovered will be 
made by this Governmerd without committal as to the mode 
of distribution." * * 

The Government did not surrender its right or abdicate 
its power or avoid its obligation to protect those of its citi- 
zens who had suffered loss by England's fault ; did not in- 
cur any obligation to increase the proiits of those who had 
profited by that fault. 

The Tribunal at Geneva, too, was careful to do nothing 
to prevent, but everything to assist, this nation in doing 
justice to its citizens. It was careful to, in terms, eliminate 
from the sum of its award all the nation's claims, except 
those made in behalf of its citizens. It expressly stated, in 
regard to every claim presented by this nation in its own 
behalf, either that it should " 6e wholly excluded from the 
consideration of the Tribunal in maldng its award,'''' or — 

" There is no ground for awarding to the United States 
any sum by way of indemnity under this head."* 

* Of the award tlio senior Coimsdof llie United Stales at Geneva 
(Hon. Caleb (Jushinj;) says in liis "Treaty of Wtisliingtou," (\r. 16-1:) 



21 

But was careful not to say any such thing as regards any 
of the cruisers, but simply decided, as to each, whether or 
not England had failed to fultill anij duty set forth in these 
new rules. 

Thus, in this general verdict, certain things in the case 
are specifically mentioned as excluded. Is it not a reason- 
able inference that things in the case not so mentioned are 
intended to be included ? (7) 

The Tribunal knew the unfriendly haste with which the 
Queen's proclamation was issued, and the alacrity with 
which the English Government and citizens gave sympa- 
thy and assistance to the maritime warfare. It was care- 
ful not to say that England did not thus incur responsibility 
for tlie acts of all the cruisers. 

The nation settled with England as it deemed best for 
all the nation, and secured the verdict the nation needed. 

Citizens' claims against England thus became in full 
force and obligation claims against tlie United States. 

Had no money been received from England, the moral 
obligation would still be binding on this nation to vindi- 
cate itself by indemnifying its citizens, for whom it had 
justly demanded indemnity, and who had suffered by that 
fault of England, which the settlement condoned. 

But money was received. 



"Tlie liiiitory of the Treat j^ and of the arbitration shows that the 
Unilcil States recover, not for the benetit of the American Government 
as siicli, but of sneli indiviilnal citizens of the United Stat(!s as sliall 
appear to have suffered loss by the acts or neglects of the British 
Government." 

'"The Conrt of Alabama Claims (Secretary of tlie Navy vs. United 
States) saj's : 'The only damaii,es awarded were for the value of pri- 
vate vessels and propert}^ destroj'e<l. The fnnd out of which our 
judgments are paid represents the estimated valne of private property 
alone.'" 

(7.) 

"The positive exclusion by the protocol of one class of 
claims advanced would seem to be conclusive of the non- 
exclusion of the other class." (Fish to Schenck, vol. 2, 
p. 464.) 



22 

The imperative demand was that England should pay all 
the individual loss and damage caused to citizens of the 
United States by all the Confederate cruisers. 

In the Geneva award England paid this demand — paid 
it all. 

But although England has paid, many of those citizens 
have not been paid. 

My claim and othei's, as meritorious as any heretofore 
paid, still await your action. 

Why ? Why this long delay, this •' hope deferred," mak- 
ing tlie hearts of sufferers sicker and their poverty greater 
than Enojland's oris-inal fault had left them ? 

Why sufferers nnindemnified years after indemnity has 
been recovered, half of which is unexpended ? 

One cause explains it all. 

Certain great corporations, who had sutfered no injury or 
damage, but had reaped rich harvests of profit through the 
existence of the Confederate vessels of war, whose claims, 
therefore, never came within the scope of the demand made 
upon England by the United States, employed great law- 
yers to maintain with great assurance that a large part of 
the fund, recovered on account of England's fault, belonged, 
of right, to them, (the only parties who were enriched by 
that fault,) and that myself and manv others whom the 
fault had impoverished should be excluded in the distri- 
bution. 

To gain foundation for their claim, they must advocate a 
theory which would degrade the Government of the United 
States from its proud position of a great nation, demanding 
justice and compelling respect from the proudest of its 
peers, protecting its citizens from wrong by others, and 
doing them no wrong itself — degrade this nation from this 
proud position to that of a dishonorable claim agent, who 
uses the claim of his client to settle his own business, sac- 
rificing his client's claim to secure advantage for himself. 

These great attorneys maintained the claims of their 



23 

great clients at this great cost. They even maintained 
that if the money could not go to their clients, it should go 
back to Enghind, or go nowhere. 

And whenever Congress has refused to distribute the 
fund to their clients, as it always has, they have userl their 
influence to prev^ent it from being distributed at all ; thus 
keeping it subject to their etibrts and their fees in the fu- 
ture, and keeping just claims unpaid. 

Hence the 47th Congress is annoyed wnth this subject, 
which should have been disposed of by the 42d, but which 
has been the weariness of each Congress since. 

The record of the case has been so read and represented 
by these attorneys as to convince able and sincere mem- 
bers of both House and Senate that the rights of insurance 
companies are such as to compel Congress to do the great 
wrong of using this money to increase profits instead of to 
pay losses — to even convince some that if not paid to in- 
crease the profits of those who alone made profits, the na- 
tion may leave the losses unpaid and keep the money. 

They have done this by skillfully and persistently fixing 
attention upon the fact that the Treaty required the Tri- 
bunal to determine as to each cruiser separately whether 
or not England had failed to fulfill certain obligations set 
forth in three new international rules. They build upon 
that fact the false theory that this nation acted as attorne}' 
for a few of its citizens, gained the case of some of its 
clients and lost the case of others, and that the nation is so 
bound by the rulings of the Tribunal that it has no right 
to determine by its own judgment which of its citizens 
have suffered wrong by England's fault, and with the 
mone}' it recovered to relieve the wrong. 

They divert the mind from the foundation facts upon 
which the true theory rests — that 

The Tribunal was created not to adjudicate the case of 
citizens, but of nations. 

It was less a court than a congress of five great nations. 



24 

assembled by their representatives to give construction and 
eftect, for the fatare, to new international rules, as well as 
to enable this nation to redress, at the expense of England, 
the wrongs which our citizens had suffered in the past by 
the conduct of England. 

The Tribunal had no jurisdiction whatever of individual 
claims; it had no power to give an award o^ damages as to 
each or any one or any part of these cruisei's. 

If that was to be done, it must be done b}' another tribu- 
nal, as provided by Article 10 of the Treaty. 

The Geneva Tribunal must award a gross sum for all 
the claims referred to its consideration by the Treaty, or 
iiot award a sion at all. 

May I not hope that each member of this committee, 
whether his opinions are or are not formed, will i-ead again 
the Treaty of Washington and the award of the Tribunal? 
That he will read it as it is, not as often quoted by attor- 
neys — not as saying tliat -' the Treaty referred the claims 
of certain citizens against England to a tribunal, wdiich al- 
lowed the claims of some and rejected those of others "— 
not that the Tribunal " did not hold England responsible 
for" — "decided that England was not liable for" — "re- 
leased Great Britain from any responsibility in respect to" 
the acts of certain vessels — but read the record just as 
written : 

* * " Now, in order to remove and adjust all com- 
plaints and claims on th3 part of the United St((fes, and 
provide for the speedy settlement of such claims," * * 
"the High Contracting Parties agree that all the said 
claims growing out of the acts committed bj' the aforesaid 
vessels, * * shall be referred to a Tribunal of Arbitra- 
tion." * * * 

"The said Tribunal shall first determine as to each ves- 
sel separately whether Great J3ritain has by any act or 
omission failed to fulfill any of the duties set forth in the 
foregoing three rules, * * and shall certify such fact as 
to each of the said vessels." 



25 

Not, shall decide whether England is lor any cause re- 
sponsible for — vot, shall decide whether, on account of un- 
friendly proclamations and assistance, England should be 
held liable for the acts of each vessel, but simply say and 
certit}' for future use whether as to each she had failed to 
fuliill duties set forth in new rules which were to be bind- 
ing in the future upon the United States, and which define 
the future oblujations of the United States. And 

" In case the Tribunal find that Great Britain has failed 
to fulfill any duty or duties as aforesaid, it may, if it think 
proper, proceed to award a sum in gross to be paid by 
Great Britain to the United States for (dl the daims referred 
to it:' (8) ' ■ 

Not "on account of the liability arising as to each ves- 
sel." That the Tribunal could not, did not do. 

" In case the Tribunal * * * does not award a sum 
in gross, a hoard of assessors shall be appointed to ascer- 
tain and determine w-hat claims are valid." * * * 

If you will so I'ead, I am confident you will see that 
Secretary Fish was right when he said : 

•' Tlie direct losses from destruction of property are of 
one species. They differ in dates, localities, and amounts; 



"If Great Britain be found by the Tribunal to have 
failed of any of its duties, it is clearly within the power of the 
Tribunal, in its estimate of the sum to be awarded, to con- 
sider all the claims referred to it ; * * there is no lim- 
itation to their discretion, and no restriction to any class or 
description of claims." (Fish to Schenck, Papers, &c., 
vol. 2, p. 470.) 

" Article VII provides that ' in case the Tribunal find 
that Great Britain has failed to fulfill any duty or duties as 
aforesaid it may, if it think proper, proceed to award a sura 
in gross to be paid by Great Britain for all the claims re- 
ferred to it.' All the claims must mean all the claims men- 
tioned in Article I." (Earl Granville to Thornton. Papers, 
&c., vol. 2, p. 511.) 

Thus the effect of this expression, " (dl the claims,'' and 
the reason for its use, are shown by the highest of both 
American and English authority. 



2t; 

they do not differ in character or in species." (Fish to 
Schenck, Papers, &c., vol, 2, p. 470.) 

Will see that exculpation and inculpation, as applied to 
Confederate cruisers, although of great significance and 
value to this nation for the future, have no relation 
whatever to its obligation to pay the losses of its citizens 
caused hy the depredations of these cruisers — will see 
that its obligation is to pay, from the indemnity recovered, 
those citizens upon whom now rests the loss for which their 
Government demanded indenmity — to pay the losses for 
which the United States had declared Great Britain would 
be justly held responsible— for which it gave notice it 
would claim redress — and for which it proclaimed it could 
not avoid entailing upon the Government of Great Britain 
the responsibility — that this nation should hold itself re- 
sponsible to its citizens for their just claims for which it 
declared it would hold England responsible, and for which 
it has settled with England. 

The question is not wiien or by what vessel the loss was 
caused, l)ut was the loss real and not conmion to all the 
people of the United States. 

Is it still unindemnitied, and now resting on the claim- 
ant ? 

Does it come within the scope of the award by having 
been referred to the Tribunal, and declared settled by it? 

Is there money received under the award with which to 
pay it ? 

I do not believe there is a tax-payer in all the land so 
devoid of national pride or regardless of national honor 
that he would be willing to gain the very few mills or 
cents, or perhajjs the very small fraction of one mill, which 
lie would save by leaving such losses uni.)aid. 

The theory of insurance companies that the award a 
Geneva gave fhon rights by suljrogation to the money, to 



27 

the exclusion of sutferers like myself, has always been re- 
pudiated by decisive majorities in l)otli House and Senate.* 

They were allowed, by section 12 of the law of 1874, to 
take into account their net loss by all Confederate cruisers, 
which has been paid to them. 

We ask the same relief; no more. 

Both Senate and House have always refused to pay more 
than actual loss to insurers or to anybody. 

The House has four times passed i)ills providing pay- 
ment for such loss by the acts of all the cruisers. 

The Senate, when providing for loss by the Alabama, 
Florida, and Shenandoah after Melbourne, adopted the same 
theory, and in the law of 1874 provided that the balance 
of the money " shall be and remain a fund" from wliich to 
pay these other claims ; and after the most exhaustive dis- 
cussion, the Senate of the 46th Congress refused, by a vote 
of just two to one, to change this theory. 

Is it not time to consider the theory of the law of 1874 
established, and, in accord with that theory, to pay from 
the balance of the fund the other just claims thereon ? 

Delay not only adds to the hardsliips and poverty orig- 
inally caused by England's conduct, but causes misunder- 
standings and complications which cannot fail to injure 



* Congress has refused to allow insurance companies 
more than net loss by votes in the 42d Congress — Senate, 
23 to 17; House, 157 to 34. 43dCongress— Senate, 29 to 
21 ; House, 137 to 43. 44th Congress— House, 157 to 35. 

Until the 45th Congress every report of every commit- 
tee had been against them. In the 45th the sub-committee 
of the H. R. J. Committee reported against them, but they 
gained the very unexpected advantage, by a majority of 
one vote, of a report by the whole committee in their fa- 
vor; but the House repudiated this report by 131 to 50. 

In the 46th Congress they gained a victory in the Senate 
committee of a majority report in their favor, which the 
Senate rejected by alarger vote than ever before — 38 to 19. 



28 

and embarrass our nation in regard to pending and im- 
pending negotiations with England. 

The story summarized is this: England, jealous of this 
nation, wished it divided, to destroy its power. 

She helped thereto by making ocean warfare possible 
and eliective. 

This nation said she was to blame, and must pay its citi- 
zens who thus had suffered on the sea. 

England said she would not, but afterward agreed to an 
arrangement by which she would have to pay. 

The Senate then said : We will not settle so, but will 
demand an apology, a notional settlement, and guarantees 
for the future. 

The President said : This is right, but ?r, must pay the 
losses of our citizens. 

Just then England again asked a settlement. 

We obtained the apology, the national settlement, the 
guarantees, and money enough in a lump-sum to pay our 
citizens' losses. 

Insurance companies, though they had sulFered no loss, 
(for they received war premiums in advance, from which 
to pay for the insured part of the destructions,) said to 
Congress, " You must refuse to pay part of the losses, so 
that we can have back all that we paid out, to add to our 
profits." 

CoJigress said No ; if you have suffered loss we will pay 
your loss ; but we will not pay insurers whom premiums 
have paid, any more than w'e will pay owners whom in- 
sureis have paid. They ask nothing more ; why should 
you ? 

Insurers talked so much about •' subrogation " and '• ex- 
culpated" that Congress left a part of the losses unpaid. 
Hence a large balance of the money is left. 

Tlie House has twice passed bills paying this balance for 
losses. 

The Senate hae failed to act on these bills. 



Insurance companies still demand that this balance be 
added to their profits, or remain subject to their efforts. 

I ask that my loss and loss like mine may be paid from it. 

This nation has endorsed our claim, has demanded pay 
for it from England, has got the pay and receipted the bill, 
and vow has the mone}". 

Besides, the nation has in its treasury money enough to 
pay my loss received from the sale of the Shenandoah her- 
self, which / might have had if the nation had not de- 
prived me of mj' remedy against her. 

It cannot be possible that this great nation, having fully 
endorsed our claims and used them to gain national ad- 
vantage, worth many times their amount, will say to us, in 
regard to the money value of our loss, which it has also 
received from England : 

" We have used up your claims, and settled them with 
England, in getting the international law, and its construc- 
tion, which this nation needed ; hence your claims are 
gone. Instead of paying you the uioney we received for 
them, we will keep it to enrich the treasury — will put it 
with the money received from the sale of the cruisers whose 
acts impoverished you." 

Would that protect the nation's honor ? 
Would it secure the nation's greatest good ? 
Would it be using due diligence to protect its citizens 
from wrong ? 

Can it be possible that you are willing to increase our 
hardship by permitting further delay ? 

E. W. METCALF. 

1882. 



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